United States v. Vela, 71 M.J. 283 (the Fifth Amendment’s privilege against self-incrimination provides that no person shall be compelled in any criminal case to be a witness against himself; immunity from the use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege).

(the government may prosecute an immunized witness where it can demonstrate that it has made neither direct nor indirect use of the testimony).

(in order to prosecute an immunized witness who has given compelled testimony, the government must affirmatively prove by a preponderance of the evidence that its evidence is derived from a legitimate source wholly independent of the compelled testimony; the grant of immunity must leave the witness and the government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity).

(prosecution of appellant on murder charge was not based on his immunized testimony in violation of Fifth Amendment’s privilege against self-incrimination; his immunized testimony did not reveal anything to the government not already known from his prior statements or suggest that appellant was considering an insanity defense, the investigation of appellant was completed prior to his immunized testimony, the decision to prosecute appellant was made long before he gave any immunized testimony, and the prosecutors in appellant’s case were not exposed to immunized testimony).

United States v. Morrissette, 70 M.J. 431 (a grant of testimonial immunity provides immunity from the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial; it is the minimum grant of immunity adequate to overcome the privilege against self-incrimination provided by the Fifth Amendment to the Constitution and Article 31, UCMJ; neither the testimony of the witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial).

(the government may compel a witness to testify under a grant of use or derivative-use immunity contrary to the witness’s Fifth Amendment privilege against self-incrimination; immunity from the use of the compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege).

(because the purpose of the Fifth Amendment privilege against self-incrimination is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts, testimonial immunity only applies to compelled testimony and not all statements made by an accused; further, for a communication to be considered testimonial, it must, explicitly or implicitly, relate a factual assertion or disclose information).

(immunity from the use of compelled testimony and evidence derived therefrom includes evidentiary and nonevidentiary uses, including the indirect use of testimony to alter the investigative strategy or to inform the decision to prosecute).

(in contrast to transactional immunity, testimonial immunity does not impose a per se bar to prosecution of the witness for the offenses about which the testimony or information is given under grant of immunity; the government may prosecute an immunized witness where it can demonstrate that it has made neither direct nor indirect use of the testimony).

(because an accused who has been given testimonial immunity is compelled to relinquish his right against self-incrimination, the government bears the burden to prove that its evidence is not tainted by immunized testimony; the government must affirmatively prove by a preponderance of the evidence that its evidence is derived from a legitimate source wholly independent of the compelled testimony).

(a grant of immunity must leave the witness and the government in substantially the same position as if the witness had claimed his privilege in the absence of a grant of immunity).

(while there is no per se rule requiring a prosecutor who has been exposed to immunized statements to withdraw from the case, separating pre-immunity from post-immunity evidence is considered a best practice).

(while a wall separating pre-immunity and post-immunity investigative and prosecution teams is not required, it is considered a best practice, because a well constructed wall is demonstrative evidence that the prosecution did not make direct or indirect use of immunized testimony).

(if prosecutors are exposed to immunized testimony, the government has the burden to demonstrate that the immunized testimony was not used or derivatively used against an accused and was obtained from wholly independent and legitimate sources).

(whether the government has shown, by a preponderance of the evidence, that it has based an accused’s prosecution on sources independent of his immunized statements is a preliminary question of fact).

(in this case, two voluntary statements made by appellant to CID during an investigation into the victim’s death after he received testimonial immunity were not covered by the grant of immunity, where one statement was made during an unrelated investigation and the other statement was made spontaneously to investigators while appellant was waiting for his counsel to arrive; however, two other statements made by appellant to CID after his grant of immunity addressed the death of the victim and were covered by the grant of testimonial immunity).

(factors used to determine whether the government made direct or indirect use of an accused’s immunized statements include (1) whether the statements reveal anything which was not already known to the government by virtue of the accused’s own pretrial statements, (2) whether the investigation against the accused was completed prior to the immunized statement, (3) whether the decision to prosecute the accused had been made prior to the immunized statement, and (4) whether the trial counsel who had been exposed to the immunized testimony participated in the prosecution; however, these factors are not necessarily determinative as to whether the government has or has not met its burden; that is because the ultimate question is whether the government has made any direct or derivative use of immunized evidence, not whether it adhered to a particular timeline or process).

(in this case, the government carried its burden of demonstrating that it did not directly use appellant’s immunized statements at his second trial; although a significant portion of the investigation occurred after appellant was granted immunity and the decision to prosecute him was made after the statements were made, the statements did not reveal anything not already known to the government from other witnesses or produce any leads or influence any aspect of the government’s investigation, and the prosecution team was not exposed to the statements and was only exposed to a memo stating that appellant had refused to cooperate).

(in this case, email communication between the current prosecutor and the deputy judge advocate in charge of redacting immunized materials from the record of appellant’s first trial did not show that appellant’s second trial was indirectly tainted by his immunized testimony; although the communication created a potential for taint, the deputy judge advocate only advised the prosecutor on how to charge appellant and did not discuss the evidence or the facts of the case; additionally, appellant did not reveal any new information about the case in his immunized testimony).

(in this case, the current prosecution team was not indirectly motivated in its decision to prosecute appellant as a result of its access to particular post-immunity documents that indicated that he had not cooperated with the first investigation, where the prosecution team had an independent basis for knowing that appellant had not cooperated with the investigation from his pre-immunity statement denying that he knew how the victim died and denying his membership in a gang, even though statements of other witnesses placed him at the scene and in the gang; moreover, the terms of the testimonial immunity rule and appellant’s immunity agreement itself made clear that the government may later prosecute a witness for his failure to duly cooperate with the order to testify).

2006

United States v. McKeel, 63 M.J. 81 (testimonial
immunity protects an accused against the use of testimony, statements,
and any information directly or indirectly derived from such testimony
or statements by that person in a later court-martial; testimonial
immunity -- in contrast to transactional immunity -- does not bar
prosecution of the person who has received the grant of immunity).

2004

United
States v. Allen, 59 MJ 478 (if a person provides
information under a grant of immunity, the Government in a subsequent
criminal
prosecution must affirmatively demonstrate that the evidence it
proposes to use
is derived from a legitimate source wholly independent of the compelled
testimony; a grant of immunity by one jurisdiction within the federal
structure, such as a State, provides equivalent protections against use
of the
information by other jurisdictions, such as another State or the
Federal
Government).

(the
underlying
principle furthered by a grant of testimonial immunity is that the
witness and
the Government should be left in substantially the same position as if
the
witness had claimed the privilege against self-incrimination; we have
recently
described this principle as extracting a quid pro quo from the
Government for
the information it compels from the citizen; in addition to requiring
that the
Government abstain from using the compelled information in any way to
prosecute
the citizen, this quid pro quo also requires that the Government, if
challenged
in court, demonstrate that it has followed a process to ensure it has
not
exploited the compelled information).

(the
Government
may not rely upon or use immunized testimony in making the decision to
prosecute; the burden is upon the Government in such a case to
demonstrate by a
preponderance of the evidence, that the prosecutorial decision was
untainted by
the immunized testimony).

(in
this case,
the accused made incriminating statements to a family therapist
pursuant to a
grant of immunity under state law; under Kastigar, the
Government had to
demonstrate that the accused’s later incriminating statement to NCIS
was
derived from a legitimate source wholly independent of his earlier
inculpatory
statement to the therapist; the record demonstrates that the accused’s
statement was the product of his own desire to confess, and was not
derived by
the Government from his earlier statement to the therapist; the idea of
confessing to NCIS originated with the accused and he steadfastly
resisted the
advice of others who urged him to defer making a statement to NCIS;
even after
receiving a cleansing warning from the NCIS agent, the accused
indicated that
he understood his Article 31(b) and Miranda rights and that he
desired
to waive them).

(in
summary,
where the evidence showed that the accused wanted to make a statement
to NCIS,
that he was determined to confess, that he did not waver from that
course, and
that his confession to NCIS was knowingly and voluntarily made, and
where his
decision to confess did not result from Government exploitation of his
immunized testimony, the Government met its burden of affirmatively
demonstrating that his statement was derived from a legitimate source
wholly
independent of the compelled testimony).

(under
RCM
907(b)(2)(D)(ii), an allegation of improper use of immunized testimony
in the
prosecutorial decision constitutes a waivable basis for a motion to
dismiss).

(although
the
accused in this case moved to suppress the testimonial use of his
confession to
NCIS, he did not move to dismiss the charges or otherwise allege at
trial that
the Government improperly used immunized testimony in the course of
making the
decision to prosecute; as a result, we conduct a plain error review;
that is,
we assess (1) whether there was an error; (2) if so, whether the error
was
plain or obvious; and (3) if the error was plain or obvious error,
whether it
was prejudicial).

(although
the
investigation into the injuries to the accused’s child initially
focused on the
accused’s wife, the accused later became a suspect when the child was
injured
when he was in the accused’s sole custody; the focus of the
investigation had
shifted sharply to the accused a day before he made his statements to
the
family therapist and others; moreover, his statement to NCIS, which is
otherwise admissible, provided an independent basis for making the
decision to
prosecute; under these circumstances, the preponderance of the evidence
demonstrates that the prosecutorial decision was untainted by the
accused’s
statement to the therapist; there was no error, much less plain error,
in not
dismissing the charges).

2003

United
States v. Mapes, 59 MJ 60 (in Kastigar v.
United States,
406 U.S. 441 (1972), the Supreme Court held that prosecutorial
authorities may
not use testimony compelled by a grant of immunity; we have construed
"use" to include non-evidentiary use such as the decision to
prosecute; other federal appellate courts have construed Kastigar
to
hold that the Government may not alter its investigative strategy based
on
immunized testimony; finally, the Government may not use the testimony
of a
witness which was influenced by the immunized testimony).

(under Kastigar, the Government has a heavy burden to show
non-use of
immunized testimony; the Government must do more than negate the taint;
it must
affirmatively prove that its evidence is derived from a legitimate
source
wholly independent of the compelled testimony; an appellant is not
dependent
for the preservation of his rights upon the integrity and good faith of
the
prosecuting authorities; prosecution may proceed only if the Government
shows,
by a preponderance of the evidence, that the decision to prosecute was
untainted by immunized testimony).

(the question of whether the Government has shown, by a
preponderance of the
evidence, that it has based the accused’s prosecution on sources
independent of
the immunized testimony is a preliminary question of fact; this Court
will not
overturn a military judge’s resolution of that question unless it is
clearly
erroneous or is unsupported by the evidence).

(factors to be considered in deciding whether the Government’s
evidence
against an accused was obtained from a source wholly independent of his
immunized testimony include: (1) did the accused's immunized statement
reveal
anything which was not already known to the Government by virtue of the
accused's own pretrial statement; (2) was the investigation against the
accused
completed prior to the immunized statement; (3) had the decision to
prosecute
accused been made prior to the immunized statement; and, (4) did the
trial
counsel who had been exposed to the immunized testimony participate in
the
prosecution).

(the Government failed to show that its prosecution of appellant was
untainted by his immunized testimony where appellant’s immunized
statement
revealed important new information which was not already known to the
Government, where the investigation against appellant was not completed
prior
to his immunized statement and had reached an impasse, where charges
against
appellant were neither preferred nor referred until months after both
appellant
and his accomplice were granted immunity and provided statements
implicating
themselves in all of the charged offenses, and where the record
demonstrated
that the prosecution needed the immunized testimony of appellant to
obtain
evidence to prove several of the charged offenses).

(the "Chinese wall" constructed by the Government to separate the
two teams investigating and prosecuting appellant and his accomplice
was
ineffective in protecting appellant's immunized testimony from being
exploited
by the command in resolving his case where the convening authority, the
SJA,
and the principal CID investigator were tainted by knowledge of the
dual
investigations; both the convening authority and the SJA were privy to
appellant’s immunized statement when the decision was later made to
prosecute
him; and the investigator supervised both investigations).

(precautions such as ‘cataloguing’ or ‘freezing’ the evidence known
to the
Government before taking the immunized testimony will help the
Government carry
its burden in a subsequent trial of the immunized witness; and before
immunized
testimony is given, all reasonable efforts should be made by
prosecution
officials to memorialize what evidence is in their possession and what
prosecutorial decisions have already been made).

(the prosecution improperly used appellant’s immunized testimony
where the
prosecution induced an immunized appellant to testify against his
accomplice,
exploited this evidence to induce his accomplice to provide immunized
information implicating appellant, and finally used his accomplice's
statement
to prosecute appellant; we condemn this exploitation of immunized
testimony and
we reject the tactic of inducing each witness to testify against the
other).

(in the present case, the prosecution failed to carry the heavy
burden to
establish that appellant’s immunized testimony did not trigger his
accomplice’s
immunized disclosures; the military judge's finding of fact that the
accomplice
provided an immunized statement against appellant to get the best
sentencing
deal for himself is clearly erroneous as it is not supported by a
preponderance
of the evidence; although the accomplice claimed he made his statement
out of a
desire to come clean and to obtain a favorable pretrial agreement,
there was
little evidence that he came to his conclusion to cooperate before
notice to
him that appellant would be an immunized witness at his Article 32
hearing, and
he implicated appellant only after appellant testified against him at
the
Article 32 hearing).

(because the Government failed to carry its heavy burden to show
that it did
not exploit appellant’s immunized testimony to induce his accomplice's
cooperation and incriminating disclosures and failed to affirmatively
prove
that its evidence was derived from a legitimate source wholly
independent of
the immunized testimony, the decision to prosecute appellant was
tainted and
the remedy was to dismiss those charges affected by this evidence).